Human trafficking is a violation of human rights

The “Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime” (Palermo Protocol) of the UN, which was signed in 2000, provides a comprehensive definition of human trafficking that has been used as a basis for all further international declarations on this topic since.

Human trafficking means the recruitment of persons by means of threats, deception, violence or abuse of power, and forcing them to take up or continue in an occupation which is exploitative or similar to slavery. It does not necessarily always involve the crossing of national borders; the exploitation of a person in a difficult or vulnerable situation within a country can also be understood under the term human trafficking.

There is a strong connection between human trafficking and the complex problems caused by worldwide movements of migrants and refugees as a result of global social inequalities and the restrictive immigration and labour market policies of nation states. As a consequence, in addition to the criminal justice element, the human rights perspective is now becoming increasingly important in international debates on this issue. NGOs and quasi NGOs working to combat human trafficking have been campaigning for a stronger human rights orientation for over 20 years.

Modern day slavery

The defining element of slavery is the legal ownership of another human being. Therefore, from a legal point of view, slavery is impossible in today’s world. Nevertheless, it must be acknowledged that there are people in modern day Germany who are being forced to work under conditions which are similar to slavery or are de facto slavery.

Vulnerability caused by uncertain residency status and a lack of opportunities in their country of origin can lead to migrant women in particular falling into subjugation.

Human trafficking is a form of modern slavery. Sociologists such as Kevin Bales term human trafficking the Western European embodiment of slavery.

The case law of the European Court of Human Rights (ruling of 26 July 2005 in the case of Siliadin v. France – ECHR 73316/01, and the ruling of 7 January 2010 in the case of Ranstsev v. Cyprus and Russia, ECHR 25965/04) clearly demonstrates that the trafficking of human beings is a form of modern slavery and falls within the scope of the European Convention on Human Rights.

Indicators of human trafficking

The situation of people affected by human trafficking is characterised by the fact that they live and work under conditions which are similar to slavery. They are able to exert little to no influence over their working conditions. They can be ruthlessly exploited and serve only the profit-making ambitions of others.

For women who fall under the control of human traffickers in the sex industry this can mean being unable to refuse to perform certain sexual practices with their customers, and being unable to insist on the use of condoms. In addition, they must fulfil the sexual desires of the perpetrators (without consent or payment). The money they are allowed to keep, if any at all, is completely disproportionate to that which they earn. The distribution of the proceeds of prostitution plays an important role in identifying human trafficking and sexual exploitation. The Berlin police, for example, consider the distribution of the proceeds when workers are required to give up more than 50% of their earnings from prostitution as important evidence of human trafficking.

For those affected by human trafficking in other industries this can mean having to work for up to 19 hours per day and not being in a position to refuse to carry out certain tasks. If they earn anything at all it is significantly less that other workers in comparable positions.

People affected by human trafficking have no say regarding the conditions of repayment of real or fictitious debts, or on the interest charged on these. Disproportionately high costs are charged for entry into the country, as well as for food and accommodation etc.. The size of the sums clearly does not bear any relation to the actual costs involved. How they are repaid is usually determined unilaterally and women are unable to negotiate. Some are deprived of their freedom and experience violence.

Human trafficking in Germany

Since the reform of the penal code in 1995, human trafficking has no longer been a crime against sexual self-determination, but rather a crime against the personal freedom of an individual. Articles 232 and 233 of the German Penal Code contain provisions covering “Human trafficking for the purpose of sexual exploitation” and “Human trafficking for the purpose of labour exploitation” respectively.

There is a lot of speculation as to the extent of this crime, however estimates are not and cannot be reliable. The only evidence-based figures we have for Germany are those which are published by the Office of the Federal Criminal Police in its annual report on the situation of human trafficking in Germany. These are based only on those cases which are known to the police or those where preliminary proceedings were started, i.e. the reported cases.

These figures provide no information about the numbers of unreported cases, and reliable estimates on these are impossible. Furthermore, there is a discrepancy between the numbers of cases recorded by specialised advisory centres. In addition to the purely quantitative difference, there is also a discrepancy in the human trafficking figures regarding country of origin as this is not recorded in the overview of the human trafficking situation provided by the criminal police.

People affected by human trafficking

In order for a woman who has been affected by human trafficking to assert her rights, it is necessary for her to be identified as a victim and to declare her willingness to testify against the perpetrators as a witness during criminal proceedings. However, it is not sufficient for a woman to identify herself as a victim, or for us to identify her as such in the course of our counselling, the German law enforcement authorities must identify her as a victim of human trafficking.

Individuals who have been affected by human trafficking and who are prepared to testify as a witness in human trafficking proceedings receive temporary leave to remain in Germany. During the phase of criminal investigation by the police they are granted “tolerance to remain” according to Article 60a of the German Residence Act. Only after they have received official recognition as a witness by the public prosecutor do they receive a residency permit according to Article 25, para. 4a of the German Residence Act for the period for which they are required as a witness by the prosecution. This particular provision was only introduced in August 2007. Since only those affected by human trafficking are able to receive such a permit, these individuals are clearly labelled as such and are, as a consequence, identifiable. In addition to issues regarding data protection, this also exposes the women to danger, in particular for those who return to countries where prostitution is illegal.

This permit gives them the following rights:

They can, if they wish, seek refuge in a women’s shelter.

They receive subsistence benefits according to the provisions of the Social Security Code and receive a health insurance.

They have a right to legal representation, i.e. an attorney for incidental action. This applies only to prosecutions involving serious cases of human trafficking. The legal fees are usually covered by the state.

In theory, those affected by human trafficking have a right to work. However, in practise, it is extremely difficult for them to find work, not least due to the limited residency permit.

Up to three years may go by between their first statement to police and sentencing. It is very difficult for these women not to be allowed to see their families during such a long period of time, especially as they often have justified concerns that their families may be put at risk specifically as a result of their testimony. In addition, the fact that the witnesses are de facto unable to work during this time adds to the strain on the women. This long waiting period during the process means that they lose valuable time which they urgently need to start considering their future plans.

Normally, the women must leave Germany after the close of court proceedings at the very latest. If they are faced with danger upon return to their country of origin then there is an option of applying for residency after legal proceedings are over.

Ban Ying e.V. does not differentiate between women affected by human trafficking who are willing to testify, and those who do not want to or cannot testify. We provide counseling and psychosocial care to both groups of women.